Crowl v. Goodenberger

• Decision Date: 25 May 1897
• Citation: 71 N.W. 485,112 Mich. 683
• Court: Michigan Supreme Court
• Parties: CROWL v. GOODENBERGER.

71 N.W. 485

112 Mich. 683

CROWL v. GOODENBERGER.

Supreme Court of Michigan

May 25, 1897

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

Action by Jacob L. Crowl against David A. Goodenberger. Judgment for plaintiff, and defendant brings error. Affirmed.

Guy M Chester and Fred M. Twiss, for appellant.

Lockerby & Kinney, for appellee.

LONG, C.J.

On October 13, 1893, the plaintiff sold to the defendant a portable sawmill, or at least entered into a contract by the terms of which defendant was to have the mill for $400 worth of beech lumber. The plaintiff took back from the defendant the following agreement, the performance of which was understood to be full payment for the mill: "I, D. A Goodenberger, hereby agree to furnish Jacob Crowl four hundred dollars' worth of beech lumber, at twelve dollars per thousand, delivered; said lumber to be cut from merchantable logs; said lumber to be delivered within six months; lumber to be log run one-third two inch and two-thirds one inch." Pursuant to this agreement defendant, during the years of 1893 and 1894, and previous to April 13, 1894, delivered to the plaintiff, at his mill yard 19,500 feet of lumber, which was piled in plaintiff's yard as directed by him. A part of the lumber delivered was two-inch, and the balance one-inch. This lumber was retained by the plaintiff up to the time of commencement of suit, and not until some 11 months after did plaintiff notify defendant to remove it. It seems that no measurement was ever made of the lumber, and the defendant claims he did not deliver the balance for the reason that the plaintiff did not measure that already delivered, nor signify his acceptance of it. This action was brought to recover the price of the mill and, on the trial, plaintiff had judgment for the full value of the mill, the lumber delivered not being accepted. The case was tried before the court without a jury. The court found that defendant delivered to the plaintiff 19,500 feet and no more, but that the lumber so delivered was not in the proportion, as to thickness, as the contract called for, as nearly all of it was two-inch, and only a small part one-inch. The court further found that no application was ever made to the plaintiff by the defendant for the measurement of the lumber, nor did the plaintiff do anything indicating an acceptance of the same, unless it be construed that failure to notify defendant that he would not accept the same, before bringing suit, could be so construed; that, as matter of fact, the lumber could not be used to the best advantage by the plaintiff unless it were furnished in the proportion contracted for, as plaintiff was engaged in house furnishings, cabinet, and other kinds of work; that the suit was commenced for the purchase price of the mill about a month after the time within which the lumber should have been delivered; that the suit was brought May 15, 1894, and in May, 1895, plaintiff gave notice to the defendant to remove the lumber from his premises; that during that time nothing was said between the parties, regarding the...